TMI Blog2016 (3) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee - Appeal No. E/2765/06-Mum - A/86425/16/EB - Dated:- 9-3-2016 - MR. S.S. GARG, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri Ajay Kumar, Joint Commissioner (AR) For the Respondent : Shri Mohan V. Goswami, Consultant ORDER PER: S.S. GARG The present appeal is directed against the order of the Commissioner (Appeals), dated 29.5.2006, whereby he has allowed the appeal of the respondent for grant of interest on refund. 2. Briefly the facts of the case are that M/s. Suresh Enterprises, the respondent in this case, has filed a refund claim of ₹ 1,00,00,000/- along with interest of ₹ 49,11,000/- (total ₹ 1,49,11,000/-) on 17.12.2005 arising out of CESTAT order No. A/194-196/WZB/2005/C-III/EB decided on 6.9.2005. It is further alleged that a case was booked against the assessee by DGCEI for clandestine removal of scented tobacco and during the course of investigation, the assessee had paid total of ₹ 1,00,00,000/- vide four TR-6 challan. A show cause notice dated 29.3.2001 was issued by the DGCEI, Mumbai, to the assessee and others. The Commissioner (Adjudication), Central Excise, Mumbai, confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act: Provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty paid by the applicant is refundable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, not below five per cent and not exceeding thirty per cent per annum as is for the time being fixed by the Central Government, by Notification in the Official Gazette, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty : Provided that where any duty ordered to be refunded under sub-section (2) of section 11B in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. Explanation.- Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal, National Tax Tribunal or any court against an order of the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case. It is pertinent to mention that recently the Honble Supreme Court has examined the issue of interest on delayed refund in the case of UOI Ors vs. Hamdard (Waqf) Laboratories reported in 2016-TIOL-21-SC-CX, wherein in para 15, the Honble Supreme Court has observed as under:- 15. Sub-section (2) of Section 11-B stipulates filing of an application by the assessee before the competent authority. It also postulates that the said authority is required to be satisfied that the whole or any part of the duty of excise and interest, if any, paid on such duty is refundable. The application, as submitted by Mr. Adhyaru, has to be an application in law. Section 11-BB which deals with interest on delayed refund clearly and categorically predicates that if any duty ordered to be refunded under sub-section (2) of Section 11-B is not refunded within three months from the date of receipt of the application under Section (1) of Section 11-B, there shall be paid to the applicant interest at the notified rate from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty. The significant words are expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be filed with the refund claims of different types are annexed herewith to be used as guidelines. However, the list may not be treated as exhaustive and any other documents, if required, may be included therein and called from the assessee. Further, the Hon ble Supreme Court after relying upon the decision in the case of Ranbaxy Laboratories Ltd. vs. UOI Ors. reported in 2011-TIOL-105-SC-CX, has observed as under:- 13. Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under Sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable. [Emphasis supplied] 18. While dealing with the said facet, the Court also referred to circular dated 01.10.2002 issued by the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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